for the new yorker they examined the origin of modern-day israel and its role in middle eastern politics. look for these titles at bookstores this coming week and watch for many of the authors in the future on the tv on c-span2. ladies and gentlemen, welcome to the annual dinner and mock trial. before we begin the trial please take this time to silence all electronic devices that may disrupt this evening's proceedings. photography photography at the trial is strictly prohibited. please join me in welcoming the

trustee abby david lowell. [applause] >> good evening. thank you for joining us tonight for the annual dinner and mock trial event presented by the shakespeare theater company and the affinity group of lawyers, and those who support the legal community to bring the best that we can to the stage a wonderful theater. as you know, tonight's performance, tonight's trial is based on 1984 which is based on the 1949 book by george orwell predicting what 1984 might look like. i know i know you all know the story very well.

a completely far-fetched story where they backup an enormous amount of data in the name of national security where country's leader worked worked hard to keep the people scared and divided and encourage people to have daily sessions were they yell their anger and hate against anyone who disagrees with them or the opposition creates resistance by installing an off-line medication system not in the mainframe of the government to protect private medication. maybe not so far-fetched. at the conclusion of tonight's argument you will serve as the jury and vote on the following question. given the context of war and the threat to national security, should the oceania officials named as defendants in the winston smith lawsuit be held

liable for their treatment of winston smith in 1984? if you believe these officials should not be held liable please vote with the red token you were given for no. if you believe they should be held liable vote with the blue token for yes. please join me in welcoming supreme court marshall pamela. [applause] please welcome to the stage counsel to petitioner winston smith from the law firm arnold and porter and now counsel bob

bauer of perkins couey. [applause] supreme court justice ruth bader ginsburg presiding, justice breyer, and judge cornelia. [applause] [applause]

>> oyez, oyez, the supreme court is now in session. please be seated. welcome to 1984 as perceived by people living in 2016. [laughter] we will hear a verse from the petitioner represented by amy jeffries. thank you your honor and may i please the court. >> michael counsel sally pay and i represent our client winston smith. mr. smith is not present this evening, however. we understand that he may have been vaporized. [laughter] this goes straight to the first

point about our argument. there is a clear threat of irreparable injury in this case. that is why this court must join the state from the unlawful practices of big brother that was promised to end. winston smith has already been detained, interrogated and tortured and now possibly vaporized. further he like other citizens is subject to the states unwarranted. a party member lives from birth to death. the state of life. [inaudible] the national security reasons for the policy are vastly overblown. the state has not identified concrete information collected through its surveillance that

has been useful in defending national security. to the contrary. the surveillance has only been used to ensure that the citizens are using the appropriate bathrooms. [laughter] that's right, the state is surveilling the citizens solely to enforce the birth mac statutes. how is the state conducting the surveillance? we understand the state has pushed malware to all cell phones tablets and computers and has access to encrypted data and camera on any device. these policies will not make oceana great again. that's what the police might

claim. the era of big brother is not over. that leads me to our second argument. >> before we move on, president for the main freeman could be making a lot of money running casinos or reality tv programs are giving private speeches to investment bakers. instead he cares enough to be our president devoted totally to taking care of the people. it sounds like conjecture that the police would abuse the powers of observation they have only to keep us safe. >> he cares about only one thing and that is his own power. >> lets back up. you have introduced a threshold question. you have asked for sanctions to

be set by this court for gaining access to your preliminary briefs. you did not identify what sanctions. you did not tell us what was in those briefs that you disclaim. if you would respond to those threshold questions, what sanctions and what do you now disclaim that was in your prior brief? >> your honor, we merely disclaim on prior brief in order to protect the sanctity of the attorney-client privilege. we knew the state was monitoring all of our communications as we all know it would be damaging if released. we all know we live under constant surveillance. we believe it's important for

this court would knowledge that the state has abused its authority in the malware that is infecting all of our devices is in proper. >> the sanctions you seek our? >> would like monetary damages of course and we would like to stop the state from any more intrusive actions of our client and all the people of the state. >> i and all my colleagues were pointed by president freeman. do you think you can gain impartial justice. [laughter] or president freeman is in his last term in office so would you move that we hold this proceeding.

[inaudible] [applause] >> that is an excellent question your honor i had not thought of it. no, your honor, i in confident we can get a fair hearing from this bench. i. i would note that approximately half of you have previously worked for the aclu which is an affiliate of the oceania civil liberty group. only this court can protect the rights of winston smith. >> i know you expressed concern about the surveillance in this intrusion on your work. i just wanted to assure you there will not be any cameras in the supreme court. [applause]

>> i want to focus on your argument. i want to ask the question. [inaudible] [inaudible] >> your honor speaks excellent. [inaudible] >> thank you your honor.

how could they possibly know the rule of the case and that is that you can't win. >> for the benefit of the audience i will respond in english. thank you. his rights to be free from wrongful arrest, interrogation, torture and torture and unjustified surveillance were all well established at the time the officers mistreated him. the constitution is still enforced despite the laws that big brother has brought into play. no reasonable officer could believe it was lawful to subject him to retain beatings and torture. >> have a question. how can you say your client faced the threat of irreparable harm. he can even show standing. you read our clap chat decision.

your argument seems to rest on it chain of contingencies without any risk that is impending. just because the state has surveillance power to monitor every last communication of its subject doesn't mean the government will actually use those powers. >> your honor is correct, the court in the claptrap case did find the plaintiffs had only a speculative claim of harm as a result of the surveillance practices. :

>> the injunction stage, why we proceed on a skimpy message rather than everything he wanted. >> your honor the citizens of oceana made immediate relief. >> we would note that there is no national security threat to as we have said. big brother claims that war is peace when the fictitious war is nearly a pretext to maintain the of repressive social order and the party's grip on power. >> don't you have a serious causation problem that you need to do a record for. i know know

you argue that the party systematically destroyed the people's capacity capacity for independent analysis and critical fraud. as i think about causation, i wonder whether keeping up with the kardashians and other tv shows have done that to us. >> we are are all suffering on a regular basis your honor, that's a perfect example. [laughter] >> well. [laughter] the man who wrote about what you say was done in the name of that man was hamilton. and before i can say that you should get your way i know i want to know that man did say. [laughter] [applause]. >> your honor, if hamilton hamilton were here i know he would say that the defendants in this case the thought police

should be held liable for their illegal mists trial of smith. our our founding fathers would not have tolerated the abusive authorities that big brother has brought to this state of oc on you. >> i have a question about the record in this case. both sides have experienced new rising history. the government, who in the department and that with which with mr. smith wrote. >> he worked in many -- >> i doubt that it either side is telling us is true. >> your honor, the court must be referring to doublethink, the power of holding two contradictory beliefs in one's mind simultaneously unaccepting both of them. in warm pieces premised on big brothers indoctrination of its citizens in doublethink which we

are all suffering from. >> i also note that you relay on a case called ex parte merriment that was written by chief justice haney who also wrote the dred scott decision. is he really a reliable's source for the liberty principles? >> we might be with the merriment place because the plaintiff one. [laughter] >> that case was about suspension and why that is not strictly academic in this case is because whether it is executive, or the legislature, the legislature and oc anna is under the some of the executive -- >> that is correct your honor. my opponent relies on the silence of congress as a -- by

congress and we would argue that we cannot rely on congress to protect the rights of the citizens of oc on it. >> i would see that differently. having congress acquiesce in the unconstrained presidential powers that president freeman is exercising. congress has enacted meaningfully in years. [laughter] in facts, the government leaders care so much for the people safety that they have almost nothing but safe left in congress. >> that is exactly right and that is why we rely on this court for the release of what whiston smith speak. >> but the actions that you are speaking they happen 32 years ago. go i you discriminating those against age? isn't there a isn't there a time when we turn the page? [laughter] [applause].

>> your honor the thought police, like all officials are presumed to have knowledge and respect for basic on question constitutional rights as set forth by her founding fathers, to be free from unlawful reese arrest and torture. >> as i remember question. >> nothing was illegal. [inaudible] doesn't that mean that no law could be cruelly established? >> that is a concern that we have with the entire concept of qualified immunity in this case your honor, there is no rule of lana's state like oceania. we would cement that only this court could restore the rights of the citizens of oc on you.

in conclusion your honor's, we insist that the defendants, the thought police be held liable for their illegal mistreatment of winston smith. they must be held liable. no other outcome is consistent with the constitution, the vision of the constitution, the vision of the founding fathers that justice breyer has articulately quoted and no other outcome is consistent with justice. >> i don't know, your argument seems premised on the idea that we are in some type of dystopian science fiction police. >> this and serio scenario is 1984. >> your client is all over google and facebook, twitter, instagram and and snapchat. and for this audience, linkedin. [laughter] they even post self is with

lebron james. >> what privacy right is left. when she can see that apple, google and facebook would know more about him the state could ever learn? >> your honor, that is the next point. our client did try to lead a private life and try to have a relationship with a lover in the state which he was unable to happen. so there is a privacy which he saw. in addition your honor, i would note that through the malware that the state has placed on all of our devices, it is impossible to know whether all of the social media was truly originated by winston smith for have been placed there by the ministry of truth for which he worked in which he and others regularly used to transmit propaganda to support the states repression repressive regime. >> i also noted in your

opponents brief that they made to mention some practices with foreign companies but you didn't. you seem to focus only on domestic law. are you are you aware that justice breyer just published a book called part in the world, american law, new global reality, are just respecting his views of the law? [laughter] >> i am aware of the book your honor, i would never this respect the justice. >> yes, but did you read the book? [laughter] >> i bought the book. >> all, you're the one. [laughter] i don't understand given winston smith own description of his condition after his education.

he said that he wrongs big brother but he understood that the party had helped him quote, when the victory over himself. this seems to be a happy, content man. >> your honor, the state also argues that winston smith's problems are of his own making but he is a victim only of his own mind. if someone is para-annoyed if everyone is out to get him, and as a state clearly is in this case, this, this is the case for winston smith. he is the victim. the state criticizes his very thoughts and how is the state aware of these private thoughts? through its constant, unlawful, unrelenting surveillance. exactly the practice that smith challenges today. >> we might as well dismiss now. 's case, if i'm understanding

you correctly exerts a reasonable expectation of privacy. the the essence of which is his unwillingness to show everything, so hasn't he effectively put himself out of court because an unwillingness to share everything via iphone is contract contrary to the patriot act. >> he would not be showing everything through his iphone if the state did not have it infected by my will malware. to make its every communication available to the state. >> what about his facebook post. everything is out there. why what is your line about privacy, what you're sharing on social media what you want to share with the state. why can't the state find out to. >> and oceania mr. smith is not free to share his own thoughts because the thought police control everything. i like to reserve the remaining five minutes of my time for

rebuttal. >> [applause]. >> will now here from oc anna bobbed our. >> madam chief justice, and if if as we strongly recommend it, please the court. the patrician what is the legal proceeding? judges, counsel case, all open to the public except for the unfortunate who cannot afford the ticket price. all the price. all the world can see that this violent criminal history is now free to be a litigant in this transition is the hallmark of a rule of law society. he claims he has been lifelessly tortured, that he grounds that and a record record that is depleted with paranoia, it is so

1984. everybody is out to get him. state officials are whispering cryptically to him and always so we say, oh please. he says that our surveillance program is sure to land him in prison, but how can he know that, why would we not have done it before now, before the spectacle. and put him away quietly, staring on a magic and noble legal expense? we propose reasonably to build an incredible wall and have them pay for it. if he refuses not our fault. now petitioners says that he should be able to sue the officials that interrogated him for damages siding experts a merriment, that one man show with traditional force. yet lincoln arrested those in -- but like our -- he can committed

that these would be temporary. so when petitioner visits that memorial outside the reflecting pool that attract hundreds of thousands of visitors and pigeons, what does what does he imagine that he sees? the tawny memorial? no, we stand with lincoln and with the officers who acted on the authority of the order issued in the constitutional tradition that he forged. so allow me to close now in the words of shakespeare, when they had seen us rising in a throne, he will sit blushing in his face, not able to endure the site of day, but sell, but sell provided, tremble at his spin. or to put it simply, deny the claims, we'll take it from there. [laughter] >> you have made some pretty

strong arguments against winston smith. but as i read your argument, you seem to be saying, that no one would object to what he is going on in oc anna. both threshold argument, who does have standing? >> well certainly certainly someone who has not already been vaporized a standing or they can hardly be standing if they are vapor. [laughter] >> anyone who has not yet been vaporized standing? >> well, it's a good start.

>> everybody is subject to this 247 surveillance. >> as you know, the cell phones are equipped with a device that activated only upon the application of certain criteria. the. the petitioner doesn't know what the criteria are. so we would have to have a petitioner coming in saying here's the reason why they would be turned on and here's why be followed. and nobody's going to have the nerve to come in and say that. >> i think your argument that the argument of smith is -- because you not thinking about this lawsuit made smith the a thought crime. once he followed it you either have to go after him or admit that you don't really care what people think. and if the government doesn't care what people think, how can it defend a total surveillance

regime in the patriot act. >> all the government cares profoundly what people think or we would not be quip in the cell with the surveillance devices. >> first of all, i do not have a question for you. frankly, i cannot figure out how to question the government in a way that is designed to question the government and possible. so i want to ask you this you say that reeducation was less likely under any rational targeted criteria. i do not see how that is consistent with ocn of an 1984 policy. and later making them disappear. if you look towards winston.

[inaudible] >> i should point out to that the record shows that by the end of the book, and the council today is misrepresented. and it would most likely be an engagement letter. [laughter] >> did you mean lincoln the president president are like in the automobile? [laughter] >> i meant the one that runs in compliance with all applicable safety standards imposed by the state of oceana. >> my question is how do you turn on the cell phone exactly anyway. >> i'm sorry how did. >> how do i turn on. i've been trying to turn on. >> you don't have to worry about that at all, we are going to turn it on for you when we see you.

>> i look through your brief argument here that you're understating that level of intrusion. it's not just the monetary to the phones but isn't it true that you've recently adopted a so-called micro safe track program that is the design to keep us all trapped in our home for the next year? [laughter] >> i did not hear all of your questions. >> you're not responsible for the traffic in the city are you? >> know this a track program that keeps everybody locked in their homes, did you start that? >> it's entirely up pilot project. [laughter] >> know but i'm getting very interested now. why did you, why why are you doing all these things?

[laughter] >> we are doing what is necessary to protect the state of oceania. against the threats that petitioners themselves admitted to committing. >> what kind of threats? >> the threat of internal insurgency, a tour enemy, enemy, the threat that book we go on, and on, and on. >> my book? [laughter] >> no justice but i would like to teach you afterwards about the audio version. >> let's go back to your point then why winston smith has already been vaporized? >> what about a refrain, we did it before and we can do it again. that common sense understanding. >> so think about the sexual

offender registration law. the whole premises if you did it once, you're likely to do it again. so winston his disposition as the state did it before, they they are likely to do it again. >> but what mr. smith doesn't account for us that we have a rigorous reeducation program that as you know we have funded the race to the bottom and our goal there was to provide what we call curriculum to make sure that when mr. smith emerges he is a in better man. the very contented man that judge has identified so correctly in the book. >> i would like to follow up on the question though because why are we going after this poll for man, winston smith i want to know why the government isn't trying to surveilled -- is a danger to the state, after all the book implies --

[inaudible] >> well over is not mike client so he authorize the payment of my bills. >> therefore i most responsive to him your honor. but what i want to say about that is o'brien, doesn't admit to the authorship of that book, is a thinly guide track, goldstein of a volume known as a democracy and dictatorship by leon and it advocates the most violent method to use to unsettle a democracy. so brian impact as part of the solution and not at all part of the problem. >> why wasn't julia prosecuted? that's my question did she play the woman part? >> she is a merciful state that apply salon is specific back. there's there's no indication that she was other than someone who is in love with this man,

had been induced to entering into the conspiracy. that's what i mean, it's a shame to say that oceana lacks the rule of law when it's brimming over with that kind of empathy. >> i have a question of rule of law. it seems like the legitimacy of freeman's administration depends on the people believing that by winning the election they won back some of their civil liberties. i've been confused by you saying o'brien is your client. i see you representing the state not the individual defendant and i think you're missing an opportunity here. so you could have the illusion of the rule of law and do whatever you want if you just pin it on the individual defendants. like wire you even here with this qualified the appeal? oceana said it's all their fault, not ours, but your here appealing, avoid liability for the freeman administration, and

let the individuals take the fall. >> that sounds very appealing, thank you for suggesting it. >> rewind and start all over again. >> how can you possibly claim solid five immunity for individual defendants in the case-by-case so we do have a constitution are you asking us on qualified immunity to forget about a number of principles? >> your honor, as you know we have adopted the united states constitution. that is not to say we firmly believe in it. were adapting it to current conditions. but one thing we know for sure is the executive order pursuant to which these official acted

was well known for years. there's no reason to believe they thought it was anything other than lawful. there's no reason no reason for us to hold those lower on the totem pole responsible for the errors are for the higher up. the higher up in turn could never be prosecuted because they are not capable of committing them. >> putting aside the executive order that you just mentioned in result to justice ginsburg's question, is that at least concerned that it is unlawful to put on smith a -- [inaudible] >> your honor, first well i would answer in two parts. number one i would say that we had no testimony other than smith own for that particular episode that you cite. but even if it is true, i mean, everybody is a critic. [laughter]

>> but if you look at the state though it has committed the intention of people, torture people, torture is okay and it time a tear, is is that your position? >> know that is not our petition or position at all. anybody who has attended middle school in the united states knows there's a thin line between reeducation and torture. [laughter] it's really a moment rather than anything else. >> is there such a thing as torture, and if there is how do you define it? >> i have heard presidential debates this year that go on for three and a half hours, that i would characterize as torture.

>> you claimed the prerogative to suspend but isn't it the case that only the legislator can suspend? i wonder if you're saying congress's inability inability to fulfill even the most basic people assigned to it such as advice and consent is the president powers that ordinarily would rest with the congress. >> your honor, i would say this, congress has not been enacted. it took an enormous amount of work and political will to produce a progressive statute like ip true so when it needs to rise to the occasion it does so. >> i heard it was so long that it was nobody actually read it. >> yes your honor. i don't think it's nectar statement either that were saying congress had no role in the suspension.

as in the lincoln example we gave you earlier. congress, in that instance enacted years after an here we have acquiescence which is far better thing gridlock. >> does your answer to the judge is that in that documents? >> precisely. >> that's the point i may is that your representing government that works in the truth department how do we have any confidence of realizing history of policy a big brother are not continuing and therefore how can we rely on anything? >> will i would like to respond

to that because i think it's an important point. >> that's why asked it. >> what i would like to stresses that i think as in the thin line i discussed discussed earlier, one should not confuse line or deception with public relations and smart public relations strategy. was smith did is known as this town a spin, a violent friday, it's not lies. >> you did minor things like reps and so forth on the customs or wherever he was and there's a bunch of things here pretty bad in your saying it was really the higher-ups and not these clients. so why don't we indict the higher-ups or would you consider that judicial activism? >> your honor, as as i said earlier, i think it's very difficult to find higher-ups in oceana who are doing anything other than their level best to

protect the country. but one thing we know, whatever the record shows about the misdeeds and president freeman may well be pursuing prosecution of the higher-ups, this case is about smith and smith is a fever, paranoid, paranoid discontent was glad to draw salary from the ministry of truth until everything went apart on him. we reeducated him and he is not permitted to leave and he has a lawyer and if you're allowed to go free and are represented by counsel in this country, then all constitutional guarantees that any many have been fulfilled. >> i do do have that impression from the record. i did have a different impression but if were continuing this policy why don't we impeach president freeman too, if if there is no law why can't we just be activists? >> well as i said to if there's no law, what are we doing here, is this a fundraising event?

[laughter] >> we do have a higher law stipulated as a constitution. what constitutional right does smith have? does he have amendment rights? does your fourth amendment right, does he have a commitment right? does he have any of those? >> he absolutely does chief justice ginsburg. there's no question whatsoever we embrace the united states constitution and any time that mr. smith want some exposure to those rights he's free to inspect them at the national archives. >> i'm not sure this is relevant to the case before us but i can't resist the opportunity since we have you here, i understand that in oceana two plus two equals five, i wonder if that code for a gun plus a gun equals due process?

[applause]. >> that, i think your honor is the new math that has been created with voter rage. >> didn't you really cross the line into clearly unconstitutional cruel and unusual punishment when you made meat chopsticks? [laughter] >> quite the contrary in your honor. they are the best steaks found anywhere. as you know, we also offered them an opportunity to have the stakes with the book we supplies called art of the mule. >> mr. bauer, want to assure you that given the current of judicial conduct which the administration has reenacted.

>> under the holdings of -- >> there's a theory about the constitution's place in a time of terror. it is known as the death chair theory of constitutional right. that is is when the sun shining, when we are at peace, we have all the constitutional rights that we could have. but when the storm clouds gathered, the deck chairs not folded up and all the rights go away. is that the view that you are trying to get this court to accept? the constitutional rights are for sunshine and not the stormy weather? >> if i could liken it for example to a dome to baseball

stadium, most people like to watch baseball in an open area with a bright, sunny blue sky. every now and then the weather interferes and in some jurisdictions they close the roof, but but the game of baseball continues. >> i think that's an appropriately misleading analogy. [laughter] >> are you listening to the cell phone or are you not? >> it to mr. smith's cell phone? >> our impression is that it would vaporize along with him. we are not getting the signal to be honest. >> so -- if their self onto not working we see no harm in that. >> good point.

>> is it okay to look at the law of other countries to determine whether that is a disproportionate punishment? to decide whether vaporization is cruel and unusual punishment. >> only three countries are on the base of the earth and the other two are mortal enemies so we have to be careful on the direction on their part. >> you you forgot the country of a poor area. >> leah that is covered in your book. >> i had one other question for you, and that is really whether your means are disproportionate to the end, if if you want to get inside of our cell phones, do we really need to authorize the government to do it, can't most teenagers do it? >> yes your honor, but your wishes fulfilled. the government the government is currently being run by teenagers.

[laughter] in conclusion,. [laughter] in conclusion, the petitioner as come here not in fact because he is no longer with us to claim that he has standing, he does not have standing and he should not be here attempting to suggest that the state, in this courtroom, and this legal proceeding, with this public in attendance is in any way lawless. were merely meeting the demands of the moment the best we can and as i said earlier we stand in the tradition of some of our greatest presidents have had to take the steps in times of crisis. thank you. [applause]. >> i think you have five minutes remaining.

>> thank you your honor. my opponent, i like to thank my opponent for his eloquent argument today for the fact that he has conceded the critical point which is that he need not defend the individual officers in this case. he is representing big brother and leaving the individual officers out to dry. >> can i just say that i'm a little tired little tired of all these references to big brother. isn't it time to break the glass ceiling? >> many of us in the audience would like to think that big sister would not be quite so abusive in exercising their authority [applause]. >> thank you your honor. >> my opponent has outright admitted that the government is placing surveillance devices on it citizens, including justice

breyer. >> i am shocked. >> the state has argued that winston smith is a member of the insurgency that must be prevented from terrorizing oceania. which justifies depriving him of his civil rights. and then the state argues that he has not established that his civil rights are being violated. this is exactly the type of doublethink that they have brought oceana that they put on the school to put an end to. big brother cannot be trusted. president freeman is nothing but a family disguised incarnation a big brother. only this court can protect citizens like winston smith from the ciccone and abusive that the state has committed here. this court must find for winston smith. if they're no further questions, like to conclude because some members of the audience may have to return home by safe track.

[laughter] >> thank you counsel. [applause]. >> all rise, we will now have a break. [inaudible] [inaudible] >> are doing will will also vote by placing a red or blue token in the box being plasse along.

given the context of war or a threat to national security, should the oceana officials name as defendants in smith's lawsuit be held liable for their treatment of winston smith in 1984. again if it you think they should not be held liable put the red token, if you think they should be held liable place the blue token in the basket. again the question is, given the context of war, or the threat to national security, should the oceana official named as defendants be held liable for their treatment of winston smith in 1984, no for red, yes, blue. >> ladies and john and, please welcome abby david for tonight's discussion.

>> as is our tradition when the judges deliberate we like to make sure that we will continue the conversation, so please let me bring to the stage a person i've known for a while, great lawyer that this book addresses. he is a trial lower, advisor by by crisis and media events and one of the lead lawyers and advising apple and the controversy that it has had an is happening with the government, mainly the fbi that was involved in litigation and advice to the company in dealing with the issue that were both in court, in the media, and continue to do so. in a trial about 1984, what more apt and relevant can it be bent welcome to the stage somebody who is living how george only

imagined? [applause]. >> let's start with the first question, i know everybody here knows the issue, or knows knows of the controversy of apple versus fbi. but in my conversations including my own thoughts found that it is very misunderstood. some liken it as a case about privacy, some about taking of the government of people's property, so let's start off by finally getting to tell us what this dispute is really about. >> thank you for his putting the standard so high. i will try to rise to the occasion. i appreciate the chance to talk about the appliqués. we didn't think about is apple versus the fbi because the case raised important issues about national security, importance of law enforcement and at the same time

the privacy and security of citizens. just a quick recap of what happens, after the tragic events in san bernardino in december, the government immediately asked apple to produce information that it had regarding the two killers from phones that they had and other information, apple did that. it had a policy of cooperating with the government and assisting the government and responsible warrants and subpoenas. the government then went further and check the the extraordinary step of speaking in ex parte order from the court in san bernadino, asking that the court compel apple to develop new software that would destroy security protections on one of the iphones used by one of the killers which was protected by a password. apple has been working, it's an arms race to protect all of our data from hackers, from cyber

criminals and terrorists. one of the more recent features that apple had included was the kind of cherry on top of the security protocol and protections of the iphone is a backward. once you put your password and that is contained with the security measures and certainly encrypted data in your phone and in your actual phone cannot be accessed by anyone who doesn't know the password including apple. the government did not know the password, the individual is dead, they said it was an employer's phone and didn't know the password. and the the government said it needed to get into that phone and asked the court to do something extraordinary which was have apple we estimated six to ten engineers into the labs to develop a new operating system that would allow the government to hack into the fog that would destroy security protection. >> so privacy, it's a little

outside both of those, as you are getting argued ready to argue the big argument, it seems that it is both linked and it did not get to there, so what is the status right now? >> what happened was i just finished in court getting ready for the to argue these issues and i came back to my office and my assistant said the u.s. attorney was on the phone, she was was and she said they may have found a solution that made apple's cooperation or the assistance unnecessary so they wanted to cancel the hearing and they announced that they had developed a means to get into that particular phone and in another case in new york where a judge issued a very strong ruling say the separation of powers precluded the court from authorizing a backdoor into the iphone that the government could get into and this was not with all writs act it was an all powerful magic wand the government could use to get courts to order private companies to do it they wanted.

>> now congress will take the ball now that the controversy is the little outside the court. >> well we said this is an issue the american people must decide through their elected representatives, were security and privacy of citizens versus security of law enforcement. those are all important issues and those are political issues, policy issues, fbi director, he said the same thing. there issues of policy. so i think apple and others have called for commission and some prosecutors this is an important issue. >> so let me ask you an obvious question. in 1949, well presented 1984 many would say what we live with today is bad. someone say it's worse. not only do we have big brother semi big sisters watching us, for example the nsa but as questions indicated there is google, amazon, you can get on and know what you brought what you're thinking of buying. the place you buy clothes for your kids and your hobbies.

so with your new perspective, what do you think? is it bad, better? >> i think were think were much better shape than ocn in 1984. get that on the table. i think the big difference. now we have this information capability and yes we all give up certain privacy when we post things on facebook and the like but if you look at what ironically the most famous out of all time was a 1984 ad four ad by apple and the theme of it was to break out of conformity that individualism would flourish with devices like the macintosh then in the iphone now and other devices that are individuals to communicate and speak where as in ocn big brother was using these tactics and to change with the truth in actual fact.

so i think it's a big difference. [applause]. >> has a law regulating government and private technology in enterprise kept up with the technology? >> it really has not. i mention the all writs act which in 1789 that was what the government had to use to try to support apple software to allow the government and one of the things we argues that that would be subject for grand prize for hackers. that would then be used and misused for purposes. but they decided they had no opinion from 18 oh seven where they were relying on this brand-new technological order

for the court. i think the law does and i think the losses in the government because as you suggested there is incredible surveillance techniques that the government now has in this power we now want the government to protect our country, protect citizens, go after terrorists and viewers but at the same time we have different interest in our country, privacy, security, so we need the laws to be reviewed in a way that you don't stop going at least small steps to big brother. >> so the questions also projected the bedrock principle of the fourth amendment and the check power in that way is expectation of privacy. given what we now know exists raging from the nonstop social media to cameras on every street corner to the ability until we

turn on our computer, has the expectation of privacy changed so that the law will now reflect that we don't live in the place where you we shut your doors, we shut your shutters, is that one of the things that now need to be addressed. if does that have to be replaced by decision? >> i think we'll have a have a different expectation of privacy than we did 20 years ago because of the technological advances, the information that we give out in order to participate in these incredible schools and apps technology i think the court is important. i think this up in court with new technology to supply the fourth amendment in a way that protects this for the sanctity of your home. but i do think it has an effect. we've seen backlash we've seen the verdict and there is a push

back but i do think we have to look at it differently. that was one of the big things in the apple protecting privacy data that we all have so much crucial data on our phones we need to look at other interests. >> if you had the ability to tell congress right now one thing that they should legislate that would get the balance right, the one thing, what that one thing be? >> it would be that there should be encryption to protect the ballot should be struck to protect data and not give a backdoor for the government. because of all the rest. it's not just me. the defense secretary during the controversy that we just went through for national security so i would start with that premise

so end-to-end encryption and that i take it that they're ready to live with the proposition if the government can't get past the data through their means they don't have the power to compel it by any other means like a backdoor. that means our system is built on the fact that at some point we recognize law-enforcement or other interests give way to other interests like privacy, like first amendment right. forcing someone to write code to do something they strongly believe against with compelled speech. the supreme court is said many times that our system and bill of rights exist to say, at some point we may not be able to get every piece of evidence but it is worth it to to protect overriding values and rights.

>> one last question. this is a special audience that supporting the special theater. we can agree among us to keep this torso. [laughter] what is the iphone seven coming up? thank you very much. [applause]. none on none on. >> all rise.

please be seated. >> please it will come back to read the jury's decision. >> i will defer to the bench first. >> as i was saying, counsel's performance was superb and what was i think this audience will agree, more difficult case than it usually presented.

at the shakespeare theater mock trials. you are both excellent. [applause]. on the merits, the majority has concluded that this is a very easy case. if war is peace then we are in peacetime and there is no excuse for any of these extraordinary measures. [applause]. but, if i can interdict a serious note, the great jurists confronted with the question, suppose the police suspect they

have apprehended someone who knows where and when a ticking bomb is going off. can the police used torture to extract that information. the answer was simple, torture, never. why? because we could hand her enemies no greater victory then in our concern for security we lose all the basic values that make us a human society. [applause]. now, i will ask my colleagues on the bench to add concurring and

in one case a dissenting view. so justice breyer first. >> with my colleague justice innsbruck, i agree. that is a good opinion that i ever did see besides that, she has cloud because ginsberg j knows what she's talking about [applause]. >> i concur in the judgment apart because i think the state was overtly excessive and we know it's not necessary if we know the goal here is to stop the 1% of people who are terrorists. there is been an alternative plan discussing the public and that would be just to tax the 1%

[applause]. i would say the government is not entitled to qualified immunity. is established and because oceana is a mission to makes the law, it must know the law whether it has been announced by any court or not. >> and our dissenter. >> with all due respect of my colleagues, and of course is won't be the first time the supreme court has not agreed with me. [laughter] i don't feel that i am in eight position to decide this case. they each represent clients who have been rewriting history for

decades. we see oceana through its predecessors to the truth department and mr. smith. so i have absolutely. [inaudible] as a result someone who is qualified for the facts. [inaudible] [applause]. >> and now can we have the jury's verdict. >> i would like to say that in the way this theater has always

given the audience its final say , the tokens represent if you remember, blue for those who believe that those cnn officials should be held liable for the actions against winston smith, and the red at know they should not be held liable. [inaudible] >> this concludes that the ocn in 1984. clapmac enjoy the rest of your evening.

[applause]. >> c-span, created by america's cable television companies. >> afterwards is next on book tv representative discusses his time of chairman of oversight and government reform in key investigations including benghazi, passengers and irs targeting controversy. this book is washita, the re